Com. v. Morant, J.

• Court: Superior Court of Pennsylvania
• Decided: June 27, 2025
• Docket: 471 MDA 2024
• Status: Unpublished

Opinion

J-A07044-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEREMY JOSEPH MORANT : : Appellant : No. 471 MDA 2024

Appeal from the Judgment of Sentence Entered January 4, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No: CP-36-CR-0000987-2022

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JUNE 27, 2025

Appellant, Jeremy Joseph Morant, appeals from the judgment of

sentence imposed on January 4, 2023, by the Court of Common Pleas of

Lancaster County. He challenges the sufficiency of the evidence to support

his conviction of drug delivery resulting in death. Upon review, we affirm.

On February 20, 2021, shortly before 11:00 A.M., Officer Jonathan

Werner of East Lampeter Township Police Department was dispatched to the

Classic Inn on Lincoln Highway for a reported cardiac arrest. N.T. Trial, 10/11-

13/2022, at 52-53. Upon arriving, Officer Werner went to the second floor

because he heard someone crying. Id. at 53. The door to Room 33 was

partially opened, so he announced himself as a police officer and went inside.

Id. Officer Werner saw a man, later identified as Randall Devine, performing

CPR on a motionless female on the floor. Id. at 54. Officer Werner located a

purse nearby and found documents that identified the female as Brittany J-A07044-25

Zimmerman. Id. at 62. The coroner’s office pronounced Zimmerman dead

at 12:23 P.M. and noted that she had likely been deceased for less than three

hours. Id. at 102, 105.

Gregory Root, Zimmerman’s friend and the registered occupant of Room

33, testified that they were planning on checking out that day. Id. at 204.

When Root entered Room 33 shortly before 11:00 A.M. checkout, he saw both

Devine and Zimmerman slumped over and passed out with their heads on the

table. Id. Root was unable to wake Zimmerman and moved her from the

table to the floor to perform CPR. Id. at 204, 207. Zimmerman was blue in

the face, cold and did not have a pulse. Id. at 207. Root, who was also a

known drug user, would later testify that there were needles and heroin bags

on the table, not crystal meth bags. Id. at 209. He explained that crystal

meth typically comes in clear bags, while heroin comes in wax baggies. Id.

The bags he saw on the table were of the latter variety. Id. at 210. Root

then went to the front desk to ask for help. Id. He denied selling Zimmerman

any drugs on February 19 or 20, 2021. Id. at 213.

The scene was then processed for evidence by Detective Preston

Gentzler. Id. at 82. He collected a cell phone and observed drug

paraphernalia, i.e., small baggies, pieces of tin foil and uncapped hypodermic

needles, which were not collected. Id. at 86, 89, 94. These items were

consistent with heroin and/or fentanyl use. Id. at 59, 86. When Detective

Gentzler examined Zimmerman’s body, he discovered a frothy substance

coming from her nose, as well as a hand towel or washcloth in a color similar

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to the frothy substance, which is also consistent with an opioid death. Id. at

90-91, 120.

The coroner’s officer conducted an external autopsy and collected

Zimmerman’s urine and femoral blood for testing. Id. at 123-24, 130.

Toxicology tests revealed the presence of “amphetamine, methamphetamine,

11-Hydroxy [THC], Delta 9 THC, Delta 9 carboxy THC, Delta 9 THC, fentanyl,

and Norfentanyl” in her system. Id. at 128. Pathologist Dr. Wayne Ross

opined that Zimmerman died of acute fentanyl toxicity. Id. at 130. He

explained that her fentanyl level was 9.1 nanograms per milliliter, “three times

the lethal level that it takes to cause death.” Id. at 132.

Detective Christopher Jones was assigned as lead investigator and in

the days following Zimmerman’s death, he located and downloaded

surveillance videos from Classic Inn. Id. at 228, 231. The videos showed

that Zimmerman and Devine exited Room 33 around 3:16 A.M. on February

20, 2022, left the motel and walked west on Lincoln Highway. Id. at 231-32.

The pair returned to Classic Inn around 4:32 A.M. Id. at 232. To figure out

where they went, Detective Jones made a list of other hotels in the area to

investigate, one of which was Econo Lodge, located one mile from Classic Inn.

Id. at 233. The surveillance videos from Econo Lodge showed Zimmerman

and Devine entered one of the motel’s stairways about 30 to 40 minutes after

leaving Classic Inn. Id. at 232-33. At the same time, a male occupant of

Room 212 exited and walked to the stairway that Zimmerman entered. Id.

at 234. Zimmerman then went back down the stairs while the male returned

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to Room 212. Id. This happened once more about 30 to 40 seconds later –

the male left Room 212 and walked to the stairwell, and Zimmerman went up

the stairwell to meet the person. Id. Thereafter, Zimmerman left Econo

Lodge on foot with Devine. Id.

While reviewing additional footage from Econo Lodge, Detective Jones

observed the same male leaving Room 212 on February 20, 2022, with a

female, later identified as “Yameliz Alvarez,” the person to whom the room

was rented. Id. at 236. When Zimmerman’s cell phone, which was recovered

from the motel room, was searched, Detective Jones found Facebook

messages between her and Alvarez, and between her and Appellant. Id. at

250.

On February 18, 2021, Zimmerman messaged Alvarez to purchase a

bundle (16 bags) of fentanyl.1 Id. at 158. She sent her the agreed-upon

price of $80 via Cash App. Id. at 159. On February 19, 2021, Alvarez and

Appellant drove to Philadelphia to purchase drugs for Zimmerman, as well as

for their own personal use. Id. at 161. Appellant was aware that the bundle

of fentanyl was for Zimmerman. Id. at 162. Alvarez continued messaging

Zimmerman with updates during the trip to Philadelphia, including further

discussion on Alvarez purchasing additional drugs for Zimmerman, and how

she would pick them up. Id. at 170-73.

____________________________________________

1 Alvarez, who was also a friend of Zimmerman, knew that she was addicted

to fentanyl. Id. at 156.

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Alvarez and Appellant returned to the Econo Lodge with the drugs in the

early morning of February 20, 2021. Id. at 163, 175. Zimmerman was unable

to find a ride to their location, so she walked from Classic Inn to Econo Lodge

with Devine. Once they arrived, Zimmerman exchanged several messages

with Appellant:

Zimmerman (2/20/21, 3:43 A.M.): I am here. I am about to walk to the back door. But I am with my friend, just so you know because I had to walk.

Zimmerman (2/20/21, 3:46 A.M.): I am at bottom of steps.

Zimmerman (2/20/21, 3:46 A.M.): Should I come to the top?

Appellant (2/20/21, 3:46 A.M.): No. I don’t want to see nobody.

Zimmerman (2/20/21, 3:47 A.M.): Ima walk up.

Zimmerman (2/20/21, 3:48 A.M.): Is that cool?

Zimmerman (2/20/21, 3:48 A.M.): I am at top of stairs.

Appellant (2/20/21, 3:54 A.M.): I am coming.

Appellant (2/20/21, 3:55 A.M.): Come to the top.

Zimmerman (2/20/21, 3:55 A.M.): I am already here.

Id. at 252-54. Appellant ultimately delivered the fentanyl to Zimmerman.

Id. at 164. When Detective Jones compared the timestamps of these

messages with the surveillance videos of Appellant and Zimmerman from the

Econo Lodge, the timing matched up. Id. at 252-53. The messages narrated

what both individuals can be seen doing at specific times in the surveillance

videos. Id.

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Both Appellant and Alvarez were charged with drug delivery resulting in

death (“DDRD”) and conspiracy to commit DDRD. A jury convicted Appellant

of both offenses, as well as the lesser included offenses of delivery of a

controlled substance and conspiracy to deliver a controlled substance.

Sentencing was deferred for a pre-sentence investigation. On January 4,

2023, Appellant was sentenced to an aggregate term of seven to 20 years of

imprisonment.

On January 13, 2023, Appellant filed a post-sentence motion, and

defense counsel filed a motion to withdraw, averring that he had not been

retained for appellate purposes. The trial court denied Appellant’s post-

sentence motion and granted counsel’s request to withdraw on January 18,

2023. No further action was taken at that time.

Appellant filed a pro se notice of appeal2 and petition for appointment

of counsel on April 21, 2023. The trial court treated the pleading as a petition

for collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46, appointed counsel and granted PCRA counsel 60

days to file an amended PCRA petition. After a brief extension of time,

Appellant filed an amended PCRA petition on February 2, 2024, requesting

reinstatement of his direct appeal rights. The Commonwealth had no

objection to that request, and the trial court reinstated Appellant’s direct

2 The pro se appeal was discontinued on June 26, 2023.

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appeal rights on February 29, 2024. This appeal followed. Appellant raises

two issues for our review:

1. Was the evidence presented by the Commonwealth insufficient to prove beyond a reasonable doubt that [Appellant] committed the offense of drug delivery resulting in death where the Commonwealth failed to prove that [the] drugs which [Appellant] delivered to Ms. Zimmerman, were the drugs that Ms. Zimmerman ingested and caused Ms. Zimmerman’s death?

2. The trial court erred in charging the jury on the crimes of delivery of a controlled substance and criminal conspiracy to deliver a controlled substance as lesser included offenses when [Appellant] did not request the charges to be submitted to the jury for its consideration.

Appellant’s Brief, at 11.

Our standard of review when faced with a challenge to the sufficiency of

the evidence is:

whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

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Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc)

(citations omitted).

The crime of DDRD is committed when a “person intentionally

administers, dispenses, delivers, gives, prescribes, sells or distributes any

controlled substance . . . in violation of section 13(a)(14) or (30) of the . . .

Controlled Substance, Drug, Device and Cosmetic Act, and another person

dies as a result of using the substance.” 18 Pa.C.S.A. § 2506(a). Section

2506 “consists of two principal elements: (i) intentionally administering,

dispensing, delivering, giving, prescribing, selling, or distributing any

controlled substance or counterfeit controlled substance, and (ii) death caused

by (‘resulting from’) the use of that drug.” Commonwealth v.

Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015), appeal denied, 138

A.3d 4 (Pa. 2016). “The statute, therefore, . . . requires a ‘but-for’ test of

causation.” Id. at 993. The applicable mens rea required is two-fold:

First, the delivery, distribution or sale of the contraband must be intentional. Second, the actual death must be the reckless3 result ____________________________________________

3 The Kakhankham Court was tasked with determining the mens rea for the

second element of DDRD. Kakhankham, 132 A.3d at 993. The Court rejected the argument that the second element requires the same mens rea as the first element (intentionally) because the “intentionally causing the death of another person is already criminalized (i.e., first degree murder).” Id. It also rejected the argument that the legislature intended not to subject the second element to any mens rea and instead impose absolute liability. Id. at 994-95. Thus, the Court concluded that the mens rea for the second element must be at least reckless because (1) Section 2506 does not regulate conduct that is the subject of the typical public welfare offense for which the legislature imposes absolute criminal liability; (2) the purpose of the statute (Footnote Continued Next Page)

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of the actions of the defendant. As such, the crime is an intentional act in providing contraband, with a reckless disregard of death from the use of the contraband.

Commonwealth v. Carr, 227 A.3d 11, 16-17 (Pa. Super. 2020). This Court

has held that the Commonwealth “satisfies the reckless element as to the

possibility of death” for the purpose of DDRD when the substance involved is

heroin or fentanyl. See Commonwealth v. Scott, 325 A.3d 844, 850 (Pa.

Super. 2024); see also Kakhankham, 132 A.3d at 995-96.

Here, Appellant does not challenge whether he sold a controlled

substance to Zimmerman. Instead, Appellant argues that the evidence failed

to satisfy the second element, i.e., that the drugs he sold to Zimmerman

caused her death. Appellant’s Brief, at 31. He provides several reasons for

this contention: (1) none of the drug paraphernalia in the motel room were

tested for controlled substances; (2) Zimmerman could have sold the drugs

she obtained from Alvarez and Appellant without ingesting them; and (3)

Zimmerman could have purchased additional drugs from someone other than

Appellant and Alvarez, as two or three people were seen going in and out of

Zimmerman’s motel room after she returned from the Econo Lodge. Id. at

27-31. Therefore, Appellant asserts, the jury was left to speculate whether

the drugs Appellant delivered to Zimmerman caused her death. Id. at 29.

In Kakhankham, the appellant similarly argued that the

Commonwealth failed to prove that heroin he sold to the victim was the sole ____________________________________________

is to criminalize conduct not otherwise covered by the Crimes Code; (3) the penalty for the offense is serious; and (4) the common law origin of the crime involved (homicide) traditionally has a mens rea requirement. Id. at 995.

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or primary cause of the victim’s death. Kakhankham, 132 A.3d at 993 n.8.

The Kakhankham court explained, however, that even if the victim’s death

resulted in part from causes other than the defendant’s conduct, he could still

be held criminally liable:

Criminal responsibility may be properly assessed against an individual whose conduct was a direct and substantial factor in producing the death even though other facts combined with that conduct to achieve the result.

Id. Moreover, courts have held that “so long as the defendant’s conduct

started the chain of causation which led to the victim’s death, criminal

responsibility for the crime of homicide may be properly found.”

Commonwealth v. Keogh, 2023 WL 118687 at *6 (Pa. Super. filed Jan. 6,

2023) (unpublished memorandum) (citations and quotation marks omitted).4

A defendant may be criminally liable for another’s death even where the

defendant’s conduct is not the “sole or immediate cause.” Id.

Here, viewing the evidence in the light most favorable to the

Commonwealth, we conclude that there was sufficient evidence to support

Appellant’s DDRD conviction. The evidence shows that Zimmerman and

Alvarez exchanged several messages setting up the purchase of fentanyl,

including Zimmerman sending money to Appellant’s Cash App account.

4 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).

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Appellant and Alvarez drove to Philadelphia to procure the fentanyl for

Zimmerman, as well as other drugs for their personal use. When Appellant

and Alvarez returned to Econo Lodge, Zimmerman walked a mile to pick up

the fentanyl. Zimmerman and Appellant then exchanged messages to arrange

for delivery, a fact which was corroborated by video evidence.

The toxicology report showed the presence of fentanyl,

methamphetamine, THC, and their related by-products (metabolites) in

Zimmerman’s system. N.T. Trial, 10/11-13/2022, at 128. Methamphetamine

was detected at 600 nanograms per milliliter. Id. at 132. Amphetamine, the

metabolite of methamphetamine, was detected at 54 nanograms per milliliter.

Id. at 132-33. Dr. Ross explained that the typical level of methamphetamine

to cause death is 1,000 nanograms per milliliter, but in some cases can be

lower than 1,000 nanograms per milliliter, and up to 18,000 nanograms per

milliliter. Id. at 133. Zimmerman was a known user of methamphetamine;

therefore, Dr. Ross opined that the level of methamphetamine and

amphetamine, as well as the level of THC and its metabolites, in Zimmerman’s

blood were not contributing factors to her death. Id.

Fentanyl was detected at 9.1 nanograms per milliliter. Id. at 132.

Norfentanyl, the metabolite of fentanyl, was detected at 2.6 nanograms per

milliliter. Id. The lethal level of fentanyl is typically three nanograms per

milliliter. Id. at 118. Zimmerman’s blood contained three times that amount.

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Id. at 132. After evaluating these figures, Dr. Ross opined that Zimmerman’s

death was caused by acute fentanyl toxicity. Id. at 130.

Although Detective Jones recovered messages of Zimmerman showing

that she had attempted to buy drugs from individuals other than Appellant

and Alvarez, there was no evidence that she actually did so. Id. at 277-78.

For example, in one such message thread, Zimmerman stated that she did

not have the money to purchase drugs and would have to be “fronted,” them,

i.e., given on a loan. Id. at 278. She never met that person. Id.

The jury also heard testimony that Zimmerman had requested an

additional seven bags of fentanyl for her to sell from Appellant and Alvarez.

Id. at 170, 173. Zimmerman’s last message to Appellant indicated her intent

to ingest the fentanyl that she just purchased and to sell a portion as well:

Yo, these bags are small as shit. That’s crazy. Dude, I didn’t expect you guys to do me wrong like this. I know how Philly bags are. They are big enough to take some out and still have a good bag to sell. Come on now, like, I kind of want my money back. I look out for you guys when I can.

Id. at 254. Thus, even if Zimmerman sold some of the drugs she received

from Appellant, she also intended to use them herself, and her toxicology

results show that she did in fact ingest a lethal amount of the drug.

Appellant has argued that it was possible that Zimmerman did not

overdose from the drugs he sold her, as the jury heard testimony that two to

three other individuals went in and out of Room 33 between February 19-20,

2021. However, the Commonwealth does not need to preclude every

possibility of innocence, and any doubts regarding a defendant’s guilt may be

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resolved by the jury, which is free to believe all, part, or none of the evidence.

See Brown, 23 A.3d at 559-60. Appellant could therefore be found guilty as

long as there was evidence showing that his conduct was a direct and

substantial factor in her death. Even if the jury believed that she purchased

and ingested drugs from another individual, Appellant’s conduct in selling

Zimmerman fentanyl (which he knew to be intended at least in part for her

personal use) was sufficient evidence to establish his commission of the

offense beyond a reasonable doubt. Accordingly, as to Appellant’s sufficiency

claim on his DDRD conviction, no relief is due.

In Appellant’s second issue, he asserts that the trial court erred by

adding the lesser-included offenses of delivery of a controlled substance and

conspiracy to deliver a controlled substance to the verdict slip. We find this

issue waived for lack of development in the appellate brief. See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (finding a claim

waived “where an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review”). “[A]n issue identified on appeal but

not developed in the appellant’s brief is abandoned, and therefore, waived.”

Commonwealth v. Felder, 247 A.3d 14, 20 (Pa. Super. 2021). Here, while

Appellant raised a claim regarding the inclusion of lesser-included offenses in

the jury charge, he included no discussion or argument on the issue in his

brief. Therefore, Appellant has waived this issue, and we need not consider

its merits.

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/27/2025

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